Gatsinzi v Kisiki and Others (Miscellaneous Application No. 1493 of 2022) [2022] UGHCLD 222 (23 November 2022)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

# (LAND DIVISION)

## **MISCELLANEOUS APPLICATION NO.1493 OF 2022**

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## (Arising out of Civil Suit No. 156 of 2014)

### EDWARD KASINZI alias

# GATSINZI:::::::::::::::::::::::::::::::::::

## **VERSUS**

- 1. HUSSEIN KISIKI NYAMYALO - 2. MINSA NABAGABSO 10 - 3. NDUGA

ABDUL:::::::::::::::::::::::::::::::::::: S

## Before Hon. Justice Alexandra Nkonge Rugadya.

#### Ruling.

The applicant by way of motion under the provisions of **Section 33 of the Judicature Act** Cap.13, Section 98 Civil Procedure Act Cap.98 cap.71, and Order 52 rules 1 & 3 of the Civil Procedure Rules SI 71-1 seeking an order staying the execution of the decree and judgment in **Civil Suit No.156 of 2014** pending the determination of the appeal, and that

20 costs of the application be provided for.

> The grounds of in support of the application are contained in the affidavit in support deponed by the applicant **Mr. Edward Kasinzi.** He states *inter alia* that on 2<sup>nd</sup> September 2022, this court presided over by **Hon.** Justice Alexandra Nkonge Rugadya delivered judgment in **Civil Suit No. 156 of 2014** and that the applicant being dissatisfied with the whole decision, instructed his lawyers to file a notice of appeal, as well as a letter requesting a copy of the certified copy of the proceedings.

That while this court is vested with the mandate to issue an order staying the execution of the order and decree issued by the trial judge, the applicant avers by affidavit evidence that the respondents have since applied to have the special certificate of title cancelled as directed

30 by this court; and that if the same was to be allowed, the respondents would dispose of the suit property, thereby rendering the appeal nugatory owing to the fact that if the special certificate title is cancelled, the suit land shall be transferred by the respondents to other parties which would make it difficult for the applicant to recover the same.

Jakobt

$\pmb{\cdot}$ $\overline{ }$ That bccausc thc applicant's intcndcd appcal has a high chancc of succcss, if thc ordcr for stay of execution is not granted by this court, the applicant will suffer irrctricvable and substantial loss as thcrc is a thrcat of cxccution and thc said cxccution will rcnder thc applicant's appeal nugatory.

5 ln addition, whcn the rcspondcnts got to know of thciudgmcnt, thcy dcsccndcd onto thc suit land and not only startcd cutting the applicant's trocs but also thrcatcncd his workcrs with immcdiatc cviction and that it was only thc intcrvcntion of thc po)icc officcrs from Karirc and Nakasongola l)olicc stations that savcd thc applicant's dcvclopmonts on thc land.

!-urthcr, that this application has becn brought without unduc dclay and that it is just, fair, equitablc, and in thc intcrcst ofjusticc that this application for stay of cxccution is allowcd.

Thc rcspondcnts opposcd thc application through thc affidavits in rcply of Mr. Nduga Abdul, and Mr. Huseein Kisiki Nyamyalwo, thc contcnts of rvhich arc similar. Thcy olr.j<:ctt:d to thc application on grounds that thc application is not only prcmaturc and frivolous but that thc same has no mcrits and movcd this court to dismiss thc samc with costs.

That filing a noticc of appcal and a lcttcr rcqucsting a typcd rccord oI procccdings docs not automatically cntitlc thc applicant to an ordcr of stay of cxccution nor docs it changc thc fact that thc applicant's intcndcd appcal has no mcrit whatsocvor; 15

That it is also not true that the rcspondcnts havc applied to havc thc spccial ccrtificate of title canccllcd bccausc thc samc cannot happcn unlcss a dccrr:r: has bccn cxtractcd yct thc samc

has not bocn donc sincc counscl for thc applicant has not approvcd thc dccrcc as pcr thc letter of rcqucst. 2. O

That bccausc thc suit land is rcgistcrcd in thc namcs of thc latc Mitina Nakanwagi, thc rcspondcnts havc no intcntion of disposing of il bccausc thcy ought to first obtain a grant of lcttcr of administralion of thc dr:cr:ascd's c'statc trcforc dcaling with thc land in any way; and

that thc intcndcd appcal has no mcrit and thc grounds of appcal sct out in paragraph a @) (b) (c) and (d) arc mercly wishful thinking by thc applicant-25

In addition, thc applicants will not suffer any loss in thc cxccution of thc mattcr bccausc thc claim over thc suit land is prcmiscd on fraud and illcgalitics which this court has not only confirmcd but can also no1 allow to continuo unabatcd.

According to thcm thcrcforc this application was not only prcmaturc but also amounts to an abusc of court proccss sincc thc rcspondcnts havc not takcn any stcps to cxccutc thc ordcr of this court in Ciuil Suit No.156 of 2014, and as such thr:rc is no cxccution to bc staycd. 30

That thc contcnts of paragraph / 0 of thc applicant's affidavit in support as wcll as Annexure 'C'thcrcof arc not corrcct sincc it docs not indicatc thc policc station or thc namcs of any of thc rcspondcnts as suspccts,

I.urther, that the applicant shall not suffcr any irrcparablc loss if this application is dismissed since this court corrcctly lound that hc is not thc rightful owncr of thc suit land, which fact shall not changc evcn on appcal.

Court cven issucd a pcrmancnt injunction stopping him from using thc land, and that not 5 only must thc applicant provc that he will suffcr irrcparablc loss, but also that hc is willing to furnish sccurity for duc performancc of thc dccrcc if this court is to grant him thc ordcr for slay of cxccution.

That thc applicant has not shown that hc is willing to furnish sccurity for due pcrformancc of the dccrec, nor has hc shown or provcd that hc will suffcr any irreparablc loss if thc execution in this matter is not staycd.

That should court bc inclincd to grant this application, thc applicant bc ordcrcd to pay security for duc pcrformancc of thc dccrcc by dcpositing in courl thc total sums, and the rcst claimcd in thc taxed bill of costs.

The applicant also filcd an affidavit in rcjoindr:r to thc rcspondcnts' avcrmcnls. I Ic statcd that thc rcspondcnts did not adhcrr: to, or rcspcct thc court's dircctivcs in rcgard to thc schcdulcs on submissions as thcy chosc not to rcply to this application but adoptcd thcir old submissions. 15

That it is thc applicant's bclicf that hc is likcly to suffcr irrr:parablc damagc contrary to thc rcspondcnts' avcrmcnts as thcy havc movcd to occupy thc suit land dcspitc thc fact that on

2"d Novcmbcr 2022, Lhis court issucd an intcrim ordcr staying thc stay of cxr:cution pcnding thc dctcrmination of thc instant application thcrcby undcrmining thc ordcrs of this court and that thcy havc sincc not only clcarcd and burncd thc bushcs but havc also brought cattlc thercon and startcd making charcoal on thc land. 20

l.'urthcr, that bccausc this court in its ordcrs and dccrcr: ordcrcd thc canccllation of thc special certificatc of titlc, thc samc can bc donc at any timc without any rccoursc to thc court which prcsents an immincnt thrcat and that only thc court of appcal can dccidc whether or not thc applicanl's appcal has any mcrit or not. 25

That thc ordcr for dcposit of duc pcrformancr: of tht-' sccurity is likcly to stiflc thc applicant's appcal as thc samc is likcly to bc cxorbitant, bcyond thc applicant's mcans yct hc has an appcal bascd on vcritable grounds and that hc (thc applicant) stands to go through irreparablc damagc sincc thc applicants havc alrcady movcd to occupy the suit land as shown in thc photographs shown in thc application.

# Represe'rt.ttio't-

As per the notice of motion as well as the affidavit in rejoinder, the applicant was jointly represented by *M/s Ahamya Associates & Advocates and KOB Advocates & Solicitors*, while the respondents were represented by *M/s Kaganzi & Co. Advocates*.

#### Determination of the application by court.

An applicant seeking stay of execution must meet the conditions set out in **O. 43 r.4 (3) of** $\mathsf{S}$ the Civil Procedure Rules and those espoused by the Supreme Court in the case of Lawrence Musiitwa Kyazze V s Eunice Busingye Civil Application No. 18 of 1990.

The applicant must show that he lodged a notice of appeal; that substantial loss may result to the applicant unless the stay of execution is granted; that the application has been made without unreasonable delay; that the applicant has given security for due performance of the decree or order as may ultimately be binding upon him. (See also: Hon Theodore Ssekikubo

and Others Vs Attorney General and Ors Constitutional Application No 03 of 2014).

## a. Whether there is a pending appeal.

The applicant is required to satisfy that there is a pending appeal and that he has lodged a 15 notice of appeal. In the case before me, it is not in dispute that the applicant lodged a notice of appeal. A perusal of the applicant's pleadings indicates that the applicant through his lawyers filed a notice of appeal in this court on 6<sup>th</sup> September, 2022 and the same was transmitted to the Court of Appeal on the same day. (see Annexure 'A' of the affidavit in **support).** Thus, it is clear that the applicants indeed lodged an appeal therefore satisfying this requirement.

## b. Whether or not substantial loss may result if the order for stay is denied.

Substantial loss cannot mean ordinary loss or the decretal sum or costs which must be 25 settled by the losing party but something more than that. The applicant should go beyond the vague and general assertion of substantial loss in the event a stay order is granted. **(See:** Andrew Kisawuzi vs Dan Oundo Malingu HCMA 467/2013).

In the case of **P. K Sengendo vs. Busulwa Lawrence & Another CACA 207 of 2014,** the Court of Appeal in its ruling observed that where the subject matter was property capable of permanent alienation and therefore capable of causing the appeal preferred to be nugatory, for example, transfer, then the court will exercise its discretion in favour of the applicant, so as to give benefit to the appeal to be attended to on its merits.

This court in its judgment in the main suit directed the Commissioner, Land Registration to cancel the certificate title and also cause a survey of the suit land and create 2 separate titles

Johaly

$\mathbf{x}_{\parallel}$ $\mathcal{A}$ in thc namcs of thc latc Mitina Nakanwagi and anothcr in thc namc of the administrators of the cstate of thc latc Augustus Lwabulangwa. Court also issucd a pcrmancnt injunction against the applicant and his agcnts.

5 It is not in disputc that thc applicant is indccd in posscssion of part of thc suit land and likcly to bc hcld to be in contempt of thc samc if this application is not grantcd. It is cvidcnt from thc on set that the ordcrs of this court bcing sclf-cxccuting constitutc an immincnt thrcat and if lcft to stand without an cxprcss stay of exccution, thc pcrmancnt loss of what constitutcs thc propcrty to which thc applicant is rightfully cntitlcd may bc occasioncd and thc appcal rcndcrcd nugalory .

In light of thc abovc, I find that thc applicant is likcly to suffcr substantial loss unhss s stay of cxccution is grantcd. 10

# c. Whether there was unreasonable delag.

'l'ho Supreme Court in Musiitwa Vrs Eurlice Busingge CA No. 78/799O adviscd that <sup>a</sup> party sccking a stay should Irc prcparcd to moot thc conrijtions sct ou1 in Order 43 rule 4(3).

ln UJagar Singh u Rund.a Co;ffee Estates Ltd [7966] EA 253, Sir Clement De l\*sta.ng, Ag. V. P stated: 15

> '. . . It is onlg fqb thot an intended appellqnt utho has filed. a notice of appeal should be able to applg fot a stay of execution . . 6ls soon cs possible a.nd not hante to uait until he has lodged. his appeal to d.o so. Ouing to the long delag in obtaining the proceedings of the High Colrrt it mag be mang months before he could lodge his appeal. In the raeqntime, the execution oj the decision of the court below could cquse hirrr irreparable loss.'

#### (See also: Sel;lankannbo Dickson Applicdtion number 174 of 2OOS) uersus Ziuta Abbg lligh Court Miscellaneous

Thc judgcmcnt by this court was dclivcrcd on 2"d Scptr:mbcr, 2022. 'l'hc noticc of appcal was filcd on 61h Scptcmbcr, 2022 and on thc samc day thc applicant filcd a letter to court requesting for ccrtificd copics of thc procccdings. 25

On 121h Scptcm tx:-r, 2022, MA No.7493 of 2022 was filcd sccking a stay of cxccution. nn intcrim ordcr for stay of cxccution was grant<:d vidc MA No. 7494 ol 2022. Ilowcvcr court dcclincd to grant thc main application initially on thc ground that it had not bccn duly scrvcd.

Thc applicant applicd vidc: MA No, 7747 of 2022 for a rcvicw and sctting aside thc dismissal of the application which court grantcd on accounl of thc tcchnical crror occasioncd by ITCCMIS hc ordcr was howcvcr sct asidc upon proof that thcrc was miscommunication.

C"b"5"

In its ruling dated $2<sup>nd</sup>$ November, 2022 court found that according to the Electronic Court Case Management Information System (ECCMIS) log, its directives to file submissions were uploaded and admitted on 12<sup>th</sup> September 2022 at 16:07.

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However that, upon further audit of the system via the applicant's lawyer's portal, it was revealed that the said directives were never reflected on their end. It is on that basis that the present application was reinstated.

The above circumstances show that the applicant had been diligent in following up the application.

# d. Security for due performance of the decree/order

- 10 In the instant case, there is nothing in the pleadings, evidence or submissions indicating that the applicant is committed to furnish security for due performance or costs. The applicant in his rejoinder indeed implored this court not to grant the security for costs as it was likely to stifle his appeal. - With all due respect however, the payment of security for costs is intended to operate as a 15 shield against the filing of frivolous and vexatious appeals which may never succeed, yet have an effect in escalating trial costs. It is intended to show seriousness of the intended appellant in pursuing the appeal. The Supreme Court in Musiitwa Vrs Eunice Busingye CA No. 18/1990 advised that a party seeking a stay should be prepared to meet the conditions set out in Order 43 rule 4(3). - 20 It is the view of this court therefore that considering the size of the suit land, the balance of convenience demands that stay be granted upon the condition that the applicant gives security for the performance of the decree, which appears to be a mandatory requirement under Order 43 rule 4(3).

The application is accordingly granted on condition that the applicant deposits into court *Ug.*

25 x 20,000,000/- (Uganda shillings twenty million only) as security for the performance of the decree within a period of 30 (**thirty days**) from the date of this order.

Each party to meet their costs.

I so order.

Alexandra Nkonge Rugadya Judge 23<sup>rd</sup> November 2022

Defineed by earcil<br>Obtaining<br> $\int$ 23/11/2022

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